Trade Names, Fictitious Names, and DBAs

Photo by Ali Yahya on Unsplash

Building a successful business is hard work. You need a great product or service, a marketing plan for getting the word out, skills in sales to convert your product or service into actual money, a head for numbers and finance, and innumerable leadership skills to tie it all together. Today, let’s talk about the marketing/branding piece. We’re often asked: Should my business name and brand name be the same? What is a DBA, and do I need one? And how do I file one here in Ohio? The Secretary of State doesn’t have a DBA form. And what is the difference between a trade name and a fictitious name?

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DBAs (Trade Names)

A DBA or “doing business as” is what most people are referring to when they talk about a business name that is different from the brand name. For example, a restaurant group might collectively fall under the business name “John Smith Restaurant Group, LLC” but each individual restaurant (and these days, food truck) that falls under the group might be marketed under its own unique name such as “John Smith Seafood” and “J. Smith BBQ Truck.”

There may be lots of different reasons for doing this. If John Smith has built a great reputation as a chef and successful restaurateur, then the announcement for a new restaurant in the John Smith Restaurant Group could build a great deal of buzz compared to a new restaurant that isn’t part of the group. And while each individual restaurant may have its own unique marketing plan, perhaps the restaurants, as a group, share other resources such as overall management, employee training, or accounting. As long as there are no liability reasons for putting each concept into its own separate limited liability company or corporation, then the one business with separate brand identities could be a great marketing strategy for Mr. Smith.

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But as with all business strategies, there should be a close working relationship between the marketing team and the legal team to make sure the business owns the brand name and that it can be protected from potential competitors. To do that here in Ohio, a business or non-profit files a trade name registration. A registered trade name means that the business or individual that owns the name is claiming the exclusive right to use that name in connection with their business. The Secretary of State will not allow a later business to register a name that is too close to an existing business or registered trade name.

Fictitious Names

Ohio also allows businesses to file a fictitious name. Unlike trade names, however, a fictitious name does not include any right of exclusivity. (Personally, I think this makes filing a fictitious name rather pointless. If your competitors can come along and use the name too, then why are you putting any effort into building that brand?)

If you want to protect a brand name within the state, you should consider filing a registered trade name. However, you generally do not need to register your trade name if it is the same as your business name (because the Secretary of State will not permit someone to register a business or trade name that is already registered to a business). And, you do not need to register a trade name if you already have a federal trademark register.

To discuss this and other ways to protect your brand:

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